[Federal Register Volume 78, Number 18 (Monday, January 28, 2013)]
[Proposed Rules]
[Pages 5767-5770]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2013-01596]


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DEPARTMENT OF TRANSPORTATION

Federal Railroad Administration

49 CFR Parts 234, 235, and 236

[Docket No. FRA-2011-0061, Notice No. 2]
RIN 2130-AC32


Positive Train Control Systems (RRR)

AGENCY: Federal Railroad Administration (FRA), Department of 
Transportation (DOT).

ACTION: Clarification of NPRM and extension of comment period.

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SUMMARY: In response to a petition for rulemaking, FRA proposed, in a 
notice of proposed rulemaking (NPRM) dated December 11, 2012, 
amendments to regulations implementing a requirement of the Rail Safety 
Improvement Act of 2008 that certain passenger and freight railroads 
install positive train control (PTC) systems. The present document 
clarifies FRA's responses to several elements of the Association of 
American Railroads' (AAR) petition for rulemaking and which elements of 
the petition for rulemaking FRA is considering, and asks specific 
questions concerning those elements. This document does not alter FRA's 
proposal as issued December 11, 2012, but it does extend the comment 
period in this proceeding to March 11, 2013.

DATES: Written comments must be received by March 11, 2013. Comments 
received after that date will be considered to the extent possible 
without incurring additional expenses or delays.

ADDRESSES: Comments: Comments related to Docket No. FRA-2011-0061 may 
be submitted by any of the following methods:
     Web Site: Comments should be filed at the Federal 
eRulemaking Portal, http://www.regulations.gov. Follow the online 
instructions for submitting comments.
     Fax: 202-493-2251.
     Mail: Docket Management Facility, U.S. Department of 
Transportation, 1200 New Jersey Avenue SE., W12-140, Washington, DC 
20590.
     Hand Delivery: Room W12-140 on the Ground level of the 
West Building, 1200 New Jersey Avenue SE., Washington, DC between 9 
a.m. and 5 p.m. Monday through Friday, except Federal holidays.
    Instructions: All submissions must include the agency name and 
docket number or Regulatory Identification Number (RIN) for this 
rulemaking. Note that all comments received will be posted without 
change to http://www.regulations.gov including any personal 
information. Please see the Privacy Act heading in the SUPPLEMENTARY 
INFORMATION section of this document for Privacy Act information 
related to any submitted comments or materials.
    Docket: For access to the docket to read background documents or 
comments received, go to http://www.regulations.gov at any time or to 
Room W12-140 on the Ground level of the West Building, 1200 New Jersey 
Avenue SE., Washington, DC between 9 a.m. and 5 p.m. Monday through 
Friday, except Federal Holidays.

FOR FURTHER INFORMATION CONTACT: Ronald Hynes, Director, Office of 
Safety Assurance and Compliance, Federal Railroad Administration, Mail 
Stop 25, West Building 3rd Floor West, Room W35-302, 1200 New Jersey 
Avenue SE., Washington, DC 20590 (telephone: 202-493-6404); or Matthew 
T. Prince, Trial Attorney, Office of Chief Counsel, RCC-10, Mail Stop 
10, West Building 7th Floor, Room W75-208, 1200 New Jersey Avenue SE., 
Washington, DC 20590 (telephone: 202-493-6146).

SUPPLEMENTARY INFORMATION: 

Table of Contents for Supplementary Information

I. Purpose and Background
II. Questions Concerning Proposals in the Petition Not Adopted in 
the December 11, 2012 NPRM
    A. De Minimis Exception
    B. Yard Movement Exceptions
    C. Provision on En Route Failures

I. Purpose and Background

    FRA is issuing this document to clarify and seek additional 
information related to its proposed rule published at 77 FR 73589 on 
December 11, 2012, which was intended to provide additional regulatory 
guidance and flexibility related to the implementation of PTC systems 
by railroads as mandated by the Rail Safety Improvement Act of 2008, 
Sec. 104, Div.A, Public Law 110-432, 122 Stat. 4854 (Oct. 16, 2008) 
(codified at 49 U.S.C. 20157) (hereinafter ``RSIA''). This document 
also extends the comment period in this proceeding to March 11, 2013, 
in order to provide interested parties sufficient time in which to 
develop responses.
    RSIA was signed into law on October 16, 2008, mandating PTC system 
implementation by December 31, 2015. To effectuate this goal, RSIA 
required the railroads to submit for FRA approval a PTC Implementation 
Plan (PTCIP) within 18 months (i.e., by April 16, 2010). On July 27, 
2009, FRA published an NPRM regarding the mandatory implementation and 
operation of PTC systems in accordance with RSIA. During the comment 
period for that proceeding, CSX Transportation, Inc. (CSX) suggested 
that FRA create a de minimis exception to the requirement that lines 
carrying materials poisonous by inhalation (PIH materials) traffic be 
equipped with PTC systems.
    The final rule, published on January 15, 2010, included a de 
minimis exception, because FRA believed that the exception had 
significant merit and that it fell within the scope of the issues set 
forth in the proposed rule. However, because none of the parties had 
had an

[[Page 5768]]

opportunity to comment on this specific exception as provided in the 
final rule, FRA sought further comments on the extent of the de minimis 
exception. The further comments responsive to this issue were largely 
favorable, although the AAR sought some additional expansion and 
clarification. In publishing its second PTC final rule on September 27, 
2010, based on the comments submitted, FRA decided not to further amend 
the de minimis exception.
    In a petition for rulemaking dated April 22, 2011 (Petition), AAR 
requested that FRA initiate a rulemaking to propose expanding the de 
minimis exception and otherwise amend the rules concerning the 
``limited operations'' exception, en route failures of trains operating 
with PTC systems, and the discontinuance of signal systems once PTC 
systems are installed. AAR also requested that FRA develop a new 
exception for allowing unequipped trains to operate on PTC lines during 
certain yard operations, create a new ``limited operations'' exception 
for freight movements, modify the default procedures for handling the 
en route failure of PTC systems, and allow automatic approval of the 
discontinuance of signal systems where PTC systems are implemented. In 
response to the Petition, FRA's December 11, 2012 NPRM proposed to make 
many of the amendments requested in the Petition and requested 
additional comment on the others.

II. Questions Concerning Proposals in the Petition Not Adopted in the 
December 11, 2012 NPRM

    To fully develop the record, FRA seeks additional information from 
all parties on the issues raised in the Petition. FRA also continues to 
seek comment on all of the proposals in the NPRM, even those not 
addressed in this document. This document further serves to clarify the 
input FRA requests on specific items in the Petition and other matters. 
FRA views all elements of the Petition as within the scope of this 
rulemaking and seeks comment on each of the elements contained in the 
Petition. The Petition can be found in the public docket related to 
this proceeding, FRA-2011-0061, which can be accessed by following the 
directions contained in the ADDRESSES section of this document. Nothing 
in the NPRM has foreclosed FRA's further consideration of any issues or 
approaches related to this rulemaking that may be submitted in public 
comments.
    As a general note, when commenters are addressing specific 
provisions of the NPRM, and when suggesting specific changes, FRA seeks 
information, to the extent feasible and practicable, on the number of 
additional miles and/or locomotives that would or would not require PTC 
component installation (e.g., wayside components, onboard components). 
For example, if a commenter suggests a change to a de minimis exception 
alternative by recommending the use of a speed restriction instead of 
track class criteria, FRA is interested in the number of track miles 
that would no longer require PTC installation. FRA also seeks any 
information on the potential costs associated with any increased 
accident risk from not installing PTC. This type of information would 
help FRA evaluate the benefits and costs for each potential change to 
the PTC rule as well as the NPRM as a whole. Pursuant to Executive 
Order 13563 and to the extent permitted by law, FRA seeks information 
sufficient to make a reasoned determination that benefits justify costs 
and therefore requests comment on the magnitude of specific proposed 
rule changes.

A. De Minimis Exception

    FRA seeks comment on several aspects of the categorical de minimis 
exception. The Petition proposed modifying the categorical exception to 
apply only to 100 loaded PIH cars, and not to residue cars. AAR notes 
that the Transportation Security Administration does not deem it 
necessary to regulate residue cars for security purposes since 
consequences of the release of a residue quantity of PIH materials 
would be significantly less than the consequences of an incident 
involving a loaded PIH car. In the NPRM, FRA proposes limiting the 
categorical de minimis exception to lines with fewer than 200 cars 
containing PIH materials (including both loaded and residue cars) per 
year. For the reasons stated in the NPRM, FRA did not propose a 
wholesale elimination of the applicability of the yearly cap on number 
of cars to residue cars. Nonetheless, FRA seeks comments on that 
decision and whether the car cap should apply only to loaded PIH cars 
and at what level.
    FRA also seeks comment on the proposal to modify the de minimis 
exception to include a two-trains-per-day limitation on trains carrying 
PIH materials. Specifically, FRA seeks comment on the constraints 
proposed on the two-train limitation in the NPRM (e.g., annual carload 
limit, inclusion of residue cars) and whether different, or any, 
constraints on a train-per-day limitation would be appropriate. FRA 
seeks comment on the relationship between daily train limitations and 
safety and the relationship between a daily train limitation and the 
annual car limitation particularly with respect to different PIH 
materials. For example, if the transit time for a tank car carrying 
anhydrous hydrogen chloride is too long, there is a risk that the car 
will become over-pressurized and that locations where such tank cars 
are held need to have the capability to vent the cars. FRA also seeks 
comment on the types of track segments that might not qualify for the 
categorical de minimis exception solely due to the trains-per-day 
limitation as well as operational changes that might be necessary to 
comply with the daily train limitation on track segments that would 
otherwise qualify for the de minimis exception (i.e., track segments 
carrying less than 200 PIH material cars per year, but more than two 
trains daily carrying PIH materials).
    The categorical de minimis exception also includes two criteria 
meant to establish that a line qualifies as a ``low density track 
segment,'' as discussed in 49 CFR 236.1005(b)(iii): (1) That the line 
segment is Class 1 or Class 2 track; and (2) that the line density is 
less than 15 million gross tons (MGT) per year. With respect to the 
track class criterion, FRA seeks comment on the impact of the track 
class criterion on track maintenance standards; specifically, on 
whether the track class criterion creates a disincentive to setting 
higher maintenance standards for excluded track segments. FRA also 
seeks comment on whether the categorical de minimis exception should be 
extended to include Class 3 track segments. Alternatively, FRA seeks 
comment on the concept of eliminating the track class criteria and 
using a speed restriction on trains carrying PIH materials, and, if so, 
what that speed limit should be. FRA notes that in 2009, the Pipeline 
and Hazardous Materials Safety Administration (PHMSA) of DOT issued 
enhanced tank car design standards for new construction of railroad 
tank cars designed to transport PIH materials. The new design standards 
are intended to enhance the accident survivability of tank cars 
transporting PIH materials. 74 FR 1770 (January 13, 2009). Commenters 
should address the impact on the speed limit issue of the replacement 
of the historical tank car fleet with newer, more robust tank cars 
meeting the enhanced standards of PHMSA's rule. Commenters should 
address both the probability and severity of a potential accident when 
accounting for the costs of a potential change in track class

[[Page 5769]]

criteria or use of a speed restriction. With respect to the tonnage 
limitation, FRA seeks comment on whether 15 MGT is the appropriate 
threshold, taking into account both derailment rates and the severity 
of derailments by traffic density, for the categorical de minimis 
exemption. FRA also seeks comment on AAR's suggestion that the 15 MGT 
limit be eliminated from the categorical de minimis exception and 
potential alternative standards for the categorical de minimis 
exception.
    The categorical de minimis exception also contains a 1-percent 
grade restriction. The Petition suggests that the exception be 
restricted to grades that are not ``heavy grade'' as defined in 49 CFR 
part 232. Section 232.407 of title 49 CFR defines ``heavy grade'' as an 
average grade of at least 2 percent over two continuous miles in the 
case of a train operating with no more than 4,000 trailing tons, and as 
an average grade of at least 1 percent over three continuous miles in 
the case of a train operating with more than 4,000 trailing tons. After 
noting the difficulty of applying these criteria to track segments 
independent of specific train movements, FRA proposed in the NPRM a 
grade restriction of 1 percent for three continuous miles. FRA 
indicated that a railroad may seek relief under the general de minimis 
exception for train operations with 4,000 trailing tons or less over 
track with an average grade of two percent or less over a distance of 
two miles. FRA seeks information on operational impacts associated with 
grade limitations proposed in the NPRM and the Petition, and seeks 
information on both the probability of a potential accident and the 
severity of a potential accident associated with both grade 
limitations. FRA also seeks specific information regarding the track 
miles that would be excluded from the exception should either grade 
limitation be adopted.
    In the existing regulations, the categorical de minimis exception 
also requires that PIH materials be transported in trains that are 
temporally separated from other trains, as the term is discussed in 49 
CFR part 211, appendix A. In the Petition, AAR suggested that FRA 
replace this requirement with a requirement that trains carrying PIH 
materials be operated with an absolute block ahead of and behind the 
train. FRA indicated in the NPRM that it is considering this block-
separation proposal, though it would not be accurate to refer to it as 
``temporal separation.'' FRA requests comment on whether the block-
separation proposal would be an adequate alternative to temporal 
separation in providing adequate protection for the remaining PIH 
materials trains on a PTC-excluded track segment. FRA also seeks 
comment on any other techniques (implementation of technology, methods 
of operation, etc.) that could be used in place of temporal separation 
to establish separation between trains and ensure the safety of trains 
carrying PIH materials on PTC-excluded track segments.
    Under the proposal and the existing rule, track segments that do 
not meet the specific requirements of the categorical de minimis 
exception are still potentially excludable under the general de minimis 
exception, so long as it can be demonstrated that the track segment has 
only ``negligible risk'' of events occurring that PTC systems are 
designed to prevent. FRA seeks comment generally on methods for 
determining negligible risk and whether there should be an established 
rule for what constitutes negligible risk. In the NPRM, FRA noted the 
difficulty the agency encountered when seeking to quantify risk in the 
development of the residual risk qualifying test with respect to the 
initial PTC final rule issued on January 15, 2010, and that it could be 
difficult to quantify risk in this circumstance as well. To establish a 
quantified risk assessment as AAR requested in the Petition, such a 
calculation would presumably be necessary, and FRA requests discussion 
of how to quantify the risk of any particular track segment and what 
might be an appropriate threshold using that quantification. 
Additionally, FRA requests that commenters specifically address what 
elements (e.g., traffic type, train speed, geography, grade, or 
proximity to populated areas, or other relevant factors), should be 
considered when calculating negligible risk, as well as the potential 
utility of the hazardous material routing analysis to determining the 
characteristics of a track segment with negligible risk. See 49 CFR 
172.820.
    FRA notes that AAR's Petition also sought a new ``limited 
operations'' exception in instances where there are limited freight 
operations on a line segment (fewer than 2 trains carrying PIH per day 
and less than 15 MGT of traffic annually), and where additional 
restrictions are imposed (i.e., 40-mph speed restriction, exclusions of 
any track segments with heavy grades, special notification requirements 
prior to entering work zones, and temporal separation or an alternative 
achieving at least as much risk reduction). As noted in the NPRM, FRA 
was not willing to propose such an exception since FRA was provided 
limited flexibility in the statute to modify the definition of ``main 
line'' for freight operations, and the exception is already covered by 
the general de minimis exception. FRA seeks comment from all interested 
parties regarding these issues and any additional information related 
to AAR's limited operations suggestion contained in its Petition.

B. Yard Movement Exceptions

    While yard tracks fall outside the statutory PTC mandate, movements 
associated with yard operations frequently require some movement along 
main track adjacent to or within a yard. As FRA recognized in the NPRM, 
PTC system implementation and operation for such movements poses 
significant burdens. As a result, FRA proposes an exception from PTC 
equipage requirements for locomotives performing movements associated 
with yard operations as long as appropriate safeguards are implemented 
to ensure that the risk of PTC-preventable accidents and release of PIH 
materials is negligible. In particular, FRA proposes a new de minimis 
exception for movements associated with yard operations and seeks 
comments on how to tailor such operations to provide adequate safety 
mitigation. Consistent with the 20-mile distance limitation for 
transfer train movements in 49 CFR part 232 and the limitation for 
Class II and Class III railroads operating PTC-unequipped locomotives, 
FRA proposes that movements under the new yard movements de minimis 
exception be limited to 10 miles from entry onto PTC-equipped main line 
track. This limitation allowed for 20-mile round-trip train movements 
while limiting the track segment exposed to unequipped movements to 
only 20 miles. In the NPRM, FRA requests comment on the proposed 10-
mile limitation and seeks information as to whether 10 miles is the 
appropriate limit. Specifically, FRA is seeking discussion of the 
impact of the 10-mile limit on current switching operations. FRA also 
estimates that 500 locomotives would not have to be equipped with PTC 
onboard apparatuses if a 10-mile limit were established. FRA requests 
comment on this estimate as well as estimates of the number of 
locomotives affected if instead FRA were to adopt a 20-mile limit from 
entry on to PTC-equipped main line track. FRA also requests comments 
regarding other operational benefits or hazards that might result from 
extending the limit to 20 miles. FRA further recognizes that there may 
be unusual switching operations that pose only a negligible risk of a 
PTC-

[[Page 5770]]

preventable accident or PIH material release but nonetheless would not 
qualify for the de minimis exception as defined here. FRA requests 
examples of such operations, if any exist, and seeks comment on the 
practicability of the waiver process as an acceptable method of 
handling such operations.
    In the Petition, AAR suggested a concept that it refers to as 
``absolute protection'' to address the issue of yard movements. The 
AAR's proposal would require that the dispatcher withhold movement 
authority between two points of control by signal indication or 
mandatory directive; that the movement of non-PTC equipped locomotives 
and non-initialized locomotives would be limited to 30 mph; and that 
the distance the locomotives would be permitted to travel from a yard 
or terminal would be limited to 20 miles. FRA solicited comment on 
AAR's proposal in the NPRM and continues to seek comments on whether 
the AAR's proposal regarding dispatcher control of train movements 
provides a sufficiently low risk of an accident and PIH release to 
support approval of such an operating restriction.

C. Provision on En Route Failures

    In the NPRM, FRA seeks comment on the issue of en route failures 
and suggestions for other alternative default provisions, in addition 
to the existing authority for railroads to provide alternative methods 
of resolving en route failures in their PTC Safety Plans. Although the 
NPRM notes that FRA rejected AAR's request in the Petition to amend the 
existing rule with regard to en route failures, that statement was 
intended to mean that based on the information currently available to 
FRA, it was not willing to propose a specific change to the existing 
rule in the NPRM. FRA remains open to consideration of viable 
suggestions and ideas for handling en route failures in a manner 
different than that contained in the existing rule and encourages all 
interested parties to provide such comments on this issue. As discussed 
below, FRA seeks specific comment on the potential frequency of en 
route failures, any potential safety measures or operational 
restrictions that could be utilized in the event of an en route 
failure, as well as any information or data regarding the severity of 
the effects on the rail network that might arise due to compliance with 
the existing en route failure requirements. FRA also seeks comment on 
the degree of flexibility proposed 49 CFR 236.1029 allows FRA to 
address en route failures.
    As stated in the NPRM, FRA recognizes that there may be issues with 
PTC system reliability during the early periods of use, and seeks to 
balance the statutory mandate for increased safety with the realities 
of implementing new and previously undeveloped systems, the failures of 
which pose significant risks to overall network capacity. Accordingly, 
FRA further seeks comment on the appropriate balance of the safety risk 
and risk to network capacity both during the initial rollout of PTC 
systems and once PTC systems are fully developed with system failures 
mostly resolved. As part of that discussion, FRA requests information 
on the experiences to date with PTC system failures and system 
reliability. FRA also requests information on the actual consequences 
experienced and the potential consequences of maintaining the current 
en route failure provisions, including potential modal diversion due to 
diminished capacity. FRA also seeks comment on replacing the existing 
``en route failure'' provisions with limitations that pose less risk of 
diminishing network capacity. One method of mitigating potential 
reductions in network capacity could be a process to phase in the more 
stringent ``en route failure'' requirements as PTC systems mature and 
become more reliable. FRA seeks comment on this potential method 
generally and on the specifics of potential timeframes and phase-in 
procedures for the ``en route failure'' requirements.

    Issued in Washington, DC, on January 22, 2013.
Joseph C. Szabo,
Administrator.
[FR Doc. 2013-01596 Filed 1-25-13; 8:45 am]
BILLING CODE 4910-06-P